Austria – Asylum Court, 28 December 2011, S7 423.367 to 370-1/2011/2E
| Country of Decision: | Austria |
| Country of applicant: | Russia (Chechnya) |
| Court name: | Asylum Court |
| Date of decision: | 28-12-2011 |
| Citation: | S7 423.367 to 370-1/2011/2E |
Keywords:
| Keywords |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
This was an appeal against the decision that Poland was responsible for the asylum application of a three-month-old boy with a serious medical condition. The Austrian Federal Asylum Office did not consider the applicant’s medical condition appropriately and therefore risked violating Art 3 ECHR.
Facts:
The applicant, a three-month-old boy born in Poland, suffers from a life-threatening heart disease and had an operation shortly after his birth. His parents separated because his father’s relatives told his mother she had to return to Chechnya to let her child die there. According to the mother, medical treatment in Poland was insufficient and she therefore came to Austria. In addition to her son with the medical condition, she brought three underage children with her. Her mother and three sisters already lived in Austria for several years – partly as refugees, partly with a residence permit.
The Federal Asylum Office rejected the family’s asylum application because it was deemed Poland was responsible for the procedure on the merits. It was pointed out that medical treatment was available in Poland and that the applicant had already received treatment there. The applicant appealed against this decision to the Asylum Court.
Decision & reasoning:
The Asylum Court allowed the appeal on the following grounds:
The child's heart disease is very serious. Medical examinations emphasized that, because of the heart disease, even removal could be life threatening as the child does not get enough oxygen when it is upset. This might be fatal or lead to severe brain damage. The Federal Asylum Office did not consider the applicant’s medical condition appropriately. There might, therefore, be a risk of a violation of Art 3 ECHR.
Outcome:
The appeal was allowed and the case was returned to the Federal Asylum Office for further examination.
Subsequent proceedings:
There were no further proceedings under the Dublin II Regulation. In August 2012, the Federal Asylum Office granted the child and his family members subsidiary protection status.
Observations/comments:
This summary has been reproduced and adapted for inclusion in EDAL with the kind permission of Forum Réfugiés-Cosi, coordinator of Project HOME/2010/ERFX/CA/1721 "European network for technical cooperation on the application of the Dublin II regulation" which received the financial support of the European Refugee Fund.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Austria - Asylgesetz (Asylum Act) 2005 - § 10 |
| Austria - Asylgesetz (Asylum Act) 2005 - § 5 |